Saturday, May 20, 2006

The Duke Lacrosse Scandal looks like it will sit like an ugly boil on the American justice system until next year. Afterwards there will be a pock mark left by D.A. Mike Nifong's malicious prosecution and his abuse of the legal system.

The prosecution's case grows weaker and weaker with every passing day. Every day and every new report about the details surrounding the Duke case supports the innocence of Reade Seligmann, Collin Finnerty, and David Evans.

This is the exact opposite of how a normal criminal case proceeds. It looks like Mike Nifong will not stop this injustice. The case will have to die the death of a thousand cuts.

Here are some opinions and new information about the Duke Lacrosse rape case as it stands today.

Now Nifong is riding a tiger he cannot safely get off. His best bet may be to let this case drag on until it fizzles out, long after the media lose interest. His extraordinary postponement of trial for a year suggests as much.

In the meantime, the taxi driver who provided the first airtight alibi for one of the accused Duke lacrosse players has been picked up by the police on a flimsy, 3-year-old charge, supposedly about shoplifting. He was held for five hours for questioning -- reportedly not about shoplifting, but about the Duke rape charges.

Does this smell to high heaven or what? The taxi driver himself is not accused of shoplifting. But two women who were passengers in his cab were. Since when are taxi drivers held responsible for what their passengers did before or after being in their cab?

What purpose can harassing the driver serve? His account of what happened in the Duke rape case has already been corroborated by a surveillance camera at the bank to which he took one of the lacrosse players, as well as by other time-stamped records indicating where his passenger was during the time when he was supposed to be raping a stripper...

If nothing else, the harassment can serve as a warning to anybody who might come forward with testimony that undermines the prosecution's case.

Nifong's judgment has been poor all along- and the old adage that a D.A. can get a grand jury to "indict a ham sandwich" shouldn't be forgotten. Without defense attorneys there to test the prosecutor's evidence via the invaluable process of cross-examination, weak evidence can be made to look pretty convincing. It's not the grand jury's fault; it's just the reality that if you only hear one side, you tend to believe it.

The Mounting Evidence in Favor of Defendants' Innocence

The Problems with the Accuser's "Identification" of Evans

The Problems with the New DNA Evidence

The D.A.'s Unusual Hostility to Even Viewing Defense Evidence

If There's A Card Up the D.A.'s Sleeve, the Law Requires Him to Play It Soon

The discovery statutes in North Carolina - as in most states - do not allow prosecutors to play "hide the ball." This is a judicial proceeding, not a magic show. So D.A. Nifong will have to reveal this evidence sometime before trial.

He ought to opt to reveal it right now - to give the defense a chance to counter it. When evidence suggesting innocence is as strong as it is in this case, it's wrong to just let the case go to trial and "see what the jury says." These three young men's live will be forever affected, even if they are acquitted. Even an arrest leaves a scar; the scar of trial is far deeper.

D.A. Nifong should listen to the defense, and should drop the case unless he has strong evidence supporting the accuser. Moreover, if he does have such evidence, he should show it to us now.

former prosecutors, say the Durham D.A. has to have a powerful ace-in-the-hole, especially with DNA evidence barely implicating Evans, and none conclusively matching any of the other 46 Duke lacrosse players, according to the defense attorneys.

Nifong has a medical report of an extensive rape examination of the alleged victim from Duke Medical Center, reportedly showing evidence “consistent” with a brutal sexual assault.

The alleged victim’s father has repeated that when he saw his daughter come home from the hospital the morning after, her jaw was swollen, her body was bruised, and her leg was injured, impairing her ability to walk.

And then there is the toxicology report that is part of any rape kit procedure at a medical facility. Police officers routinely ask emergency room nurses to do a blood alcohol or date rape drug analysis when a victim who seems under the influence is in custody.

There have been strong reports, somewhat supported by the second dancer, Kim Roberts, that mixed drinks given to the two women were allegedly spiked.

Roberts says she didn’t drink hers because she was driving. The accuser drank some of hers, something happened to her glass, so she then drank all of Roberts’ drink.

It was almost immediately after, while they were performing, that Roberts says she saw the demeanor of the alleged victim deteriorate rapidly to the point where she had to be later carried out to Roberts’ car.

Only the toxicology report can confirm if it was alcohol, or a date rape drug, that was the cause.

But finally, given the beating that both Nifong and his case so far has taken in the press, observers believe that authorities may have the best evidence of all - at least one of the Duke lacrosse players, who was at the party, has already turned state’s evidence.

Mr. Cash's last point about a Duke lacrosse player "turned state's evidence" is not supported by a single news report or any unofficial leaks coming from the legal teams in Durham.

On Friday's (May 19th), The Abrams Report [MSNBC], Mr. Galanter reported that sources on the defense team said that they have not come across any kind of "smoking gun" in the discovery material they have gone through to this point.

He said, if anything, they even have more exculpatory material.

In fact, he says that the alledged victim (Crystal Gail Mangum) told the SANE [Sexual Assault Nurse Examiner] nurse at Duke University Hospital that the players did not wear condoms when they raped her.